Why is there milk in everything?

It's a common refrain from new vegans. Doing their best to avoid consuming or demanding products made from things that have been taken from animals, they have started to pay much more attention to ingredient lists on packaged, processed foods. Happily, vegans are incredibly helpful and supportive and it doesn't take us long to learn about all the myriad junk food that's accidentally vegan. Still, during that initial period we learn that there is milk, whey, lactose or casein in the strangest of places, in products in which milk as an ingredient doesn't make much sense at all. Why is this? When the decision came out in the TofuTown case (in which the European Court of Justice confirmed that words such as cheese cannot be used to describe products other than those made from mammary secretions) I took a look at that decision, and that led me to look more closely at the European legislation supporting and promoting the dairy industry. The article below explains the position.

Dairy’s Monopoly on Words: the historical context and implications of the TofuTown decision

by Barbara Bolton

Abstract

There has been a lot of commentary on the decision in Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (“TofuTown”), however most has been superficial and has given the impression that the ECJ banned plant-based food producers from using certain words, such as “milk” and “cheese”. In fact, a political decision to grant dairy a monopoly on the use of those words was taken decades ago. This paper explains the historical context of the TofuTown decision, the background to the regulation applied by the ECJ, and what the regulation and decision together mean for plant-based food manufacturers in the EU, and in particular in the UK.

In light of the exponential growth of the plant-based food market and the number of plant-based consumers in the UK and across the EU, consideration is also given to the prospect of a legal challenge to the regulation, either by a plant-based food producer or by vegan consumers. These same arguments may be advanced by vegan run plant-based businesses in defence of enforcement proceedings against them for use of the restricted words.

Introduction

There has been a lot of commentary on the decision in Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (“TofuTown”)[1], in which the European Court of Justice (“ECJ”) ruled that German company TofuTown could not call its plant-based products: ‘Soyatoo Tofu butter’, ‘Plant cheese’, ‘Veggie Cheese’, or ‘Cream.’ From the existing coverage you would be forgiven for thinking that the ECJ was asked to consider the objective meaning of the words "milk," “butter,” “cheese” and “cream” and concluded that plant milk does not qualify.[2] In fact, the ECJ was bound to apply an EU regulation which precludes the use of these words to describe and market products that are composed of anything other than “mammary secretions,” i.e. the secretions of the mammary glands of mammals, principally cows. The ECJ did not “ban dairy-style names for soya and tofu,” it was bound to give effect to a prior political decision granting dairy a monopoly on those words.

The regulation applied in TofuTown, Regulation No 1308/2013, is the most recent iteration of a set of rules that have their roots in the Treaty of Rome (1957) and the establishment of the Common Market, with the express purpose of protecting the dairy industry from competition and promoting the consumption of dairy throughout the EU. In order to understand the decision in TofuTown, it is to that regulation and its history that we must look. This paper considers the historical context in which the regulation sits, what the regulation and decision mean for plant-based businesses marketing products in the EU, and in particular the UK, and some of the legal challenges that may be made to the regulation, or in defence of enforcement proceedings, in light of the recent exponential growth of the plant-based food market and veganism.

The Historical Context

The Treaty of Rome provided for a Common Market throughout the European Economic Community (the “EEC”, which developed into the EU) covering agricultural products. It established the Common Agricultural Policy (“CAP”) with a view to ‘stabilising those markets’, ‘increasing agricultural activity’, ‘guaranteeing regular food supplies’, and ‘ensuring reasonable prices for customers’ and ‘a fair standard of living for people engaged in agriculture’.[3] Common pricing, subsidies, quotas, stock-piling, common rules concerning competition, “common action for the development of the consumption of certain products” and guarantees of the sale of those products would be used to stabilise and support agricultural markets.[4]

In that context, in 1968 the EEC introduced Regulation (EEC) No 804/68 on “the common organisation of the market in milk and milk products”.[5] It was noted that “intervention measures” were necessary to “enable the best return to be obtained from milk proteins.” Provision was made for the EEC to purchase milk, butter, cheese, skimmed-milk powder and casein[6] at an “intervention price,” and dispose of it in a way that would not interfere with the ‘balance of the market’, including by storing it and marketing it on special terms. In other words, the production of dairy would be encouraged and supported by the EEC (and later the EU) through guaranteed sales, with the EEC/EU offloading the surplus in ways that would not adversely affect the dairy industry.[7]

A Management Committee for Milk and Milk Products was established and a levy was applied to milk producers, which was used to promote the consumption of dairy and expand the market for milk and milk products,[8] with specific reference made to supplying milk products to school children.[9]

The original rules have been modified many times over the years, but the core objectives have remained unchanged: to protect and promote the dairy industry in light of the significance of that market to the EU. As noted on the Commission web site:

“Milk is produced in every single EU Member State without exception. Furthermore, milk is the EU number one single product sector in terms of value at approximately 15% of agricultural output. The EU is a major player in the world dairy market as the leading exporter of many dairy products, most notably cheeses...”[10]

This aim of promoting the consumption of milk and milk products is set out in express terms, for example in Article 2.1 of Regulation 1411/71:

“The common policy applicable to the products specified …. shall be so implemented that the greatest possible quantity of milk is consumed in the form of those products.”[11]

Political Decision - Monopoly on Words

In 1987 the EEC brought in Council Regulation (EEC) No 1898/87 on “the protection of designations used in marketing of milk and milk products.” In the preamble it was noted:

“Whereas the situation of the milk and milk products sector is characterised by structural surpluses and whereas

the disposal of these products should therefore be improved by promoting their consumption;

Whereas the natural composition of milk and milk products should be protected in the interests of Community producers and consumers;

Whereas regulations which ensure appropriate labelling and prevent the consumer from being misled will help this objective to be achieved;

Whereas milk and milk products should, therefore, be defined and the designations needing to be reserved for them should be clarified;

Whereas, apart from the case of products the exact nature of which is known through traditional usage, it is also necessary to avoid any confusion in the mind of the consumer between milk products and other food products, including those consisting partly of milk components;

Whereas this Regulation aims at protecting the consumer and at establishing conditions of competition between milk products and competing products in the field of product designation, labelling and advertising which avoid any distortion;

….

Whereas it is essential for the Commission to follow closely developments in the market for milk products and competing substitute products and to report back to the Council;

Whereas, pending the report from the Commission, Member States having already taken national measures to curb the manufacture and marketing of these products on their territory must maintain their regulations….”

It is quite clear from this preamble that Regulation 1898/87 is expressly aimed at protecting the dairy industry from competition and promoting the consumption of dairy. It also refers to measures to curb the manufacture and marketing of “competing substitute products,” products that share characteristics with dairy products but are not made from dairy, i.e. plant-based products.

Regulation 1898/87 lists in its Annex a number of words that are reserved exclusively for designating “milk products”, whereas:

“Milk products” are “products derived exclusively from milk,”[12]

“Milk” is said to “mean exclusively the normal mammary secretion obtained from one or more milkings”,[13]

“Designation” means “the name used at all stages of marketing” the product,[14] and

“Marketing” means “holding or display with a view to sale, offering for sale, sale, delivery or any other manner of placing on the market.”[15]

The designations listed in the Annex reserved exclusively for milk products are:

Whey

Cream

Butter

Buttermilk

Butteroil

Caseins

Anhydrous milkfat

Cheese, and

Yoghurt.

The impact of Regulation 1898/87 is therefore that words such as cheese, milk, yogurt and cream may only be used to name products that are derived from mammary secretions. If those mammary secretions are not bovine (from a cow), that must be stated on the product, hence goat’s milk, sheep’s cheese etc.[16]

In addition, “no label, commercial document, publicity material or any form of advertising…or any form of presentation, may be used which claims, implies or suggests that the product is a dairy product.”[17]

In 2007 Regulation 1898/87 was repealed and incorporated into Regulation (EC) 1234/2007[18] and later the 2013 version referred to in the TofuTown decision.[19]

Exceptions Based on Usage

There are exceptions. The restricted words can be used to name non-dairy products where that is a use “the exact nature of which is clear from traditional usage”[20] A system was put in place for the creation of a list of exceptions maintained by the Commission based on submissions from member states.[21] The list of exceptions includes products such as: almond milk, coconut milk, nut butters (e.g. peanut butter), and ice-cream.[22] It is also permissible to use the restricted words “to describe a characteristic quality of the product,” for example crème de banana.[23]

Enforcement of Monopoly

The claim against TofuTown was taken by Verband Sozialer Wettbewerb (“VSW”), described in the judgement as “a German association whose responsibilities include combatting unfair competition.” On the contrary, as set out above, the regulation is overtly protectionist and anti-competitive as between dairy and plant-based products, and VSW sought to enforce dairy’s long-standing monopoly on the use of certain words.

While the TofuTown decision did not see the ECJ ban plant-based businesses from using certain words to market their products, that ban having been put in place decades ago, it did confirm that the use of a plant-based descriptor alongside the restricted words is not enough to get around the prohibition; for example “plant cheese” or “veggie cheese”. Presumably the German authorities will now ensure that TofuTown changes its product names to comply with the ECJ ruling.

Implementation in the UK

Regulations have direct effect, meaning they are binding on member states without the need for implementing legislation. However, reports indicate that the UK was not in full agreement with the restrictions when they were introduced, at least with respect to the marketing of soya milk.[24] It is reported that the UK Government consistently took the position that "soya milk" fell within the terms of the exception, as its nature was clear from traditional usage. By 1995 the Commission had decided to take the UK to the ECJ for failure to regard the marketing of soya milk as an infringement of Regulation 1898/87.[25]

A report indicates that in 1995 Mark Watts, then MEP for East Kent, led a challenge to the Commission in support of a UK soya milk manufacturer, Plamil, which was reported to have then been marketing its product as "soya milk" in the UK for over thirty years. Mark Watts reportedly presented a petition signed by over 70 UK MEPs calling on the Commission's Agricultural Commissioner to withdraw the threat of taking the UK Government to Court.[26]

It appears from the report that the UK dairy industry was also at that time fairly sanguine about the idea that plant products could constitute a threat to the dairy market, with a representative of the National Dairy Council reported to have questioned the argument that consumers could be confused between soya and cow's milk, commenting: "We think the consumer is a bit brighter than that", while Stephen Crompton of the 'Consumers in Europe' Group is reported to have stated: "We are unaware of any evidence that UK consumers have been misled into believing that soya milk is a dairy product. We believe that the name 'soya milk' is well established and that calling it something else will cause confusion".

The UK Agriculture Minister Angela Browning is also reported to have stated: "If they succeed where we have failed then nobody will be more pleased then me," indicating that the UK government supported the efforts to have soya milk included on the list of exceptions.[27]

However, a further report refers to then UK farm minister Douglas Hogg meeting EU Farm Commissioner Franz Fischler in 1995, during which meeting the Commissioner made it clear that the Commission remained of the view that soya milk would have to be referred to as “soya drink,” as it was not dairy, and it appears that the UK capitulated as national rules implementing Regulation 1898/87 were then adopted.[28]

The UK implementing regulations make it clear that in the UK the exception for non-dairy products which are well understood through traditional usage is only available for products which do not compete with dairy and it is specifically noted that “the terms ‘soya / rice / oat milk’ are not permitted.”[29]

Impact of TofuTown on Plant-Based Companies in the UK

The approach currently adopted by plant-based businesses marketing products in the UK is very mixed. Soya milk has been marketed as “soya drink” in the UK for many years, since the UK implemented the regulation at the end of the 1990’s, and most businesses have adopted the same approach for other plant milks as they have come onto the market, for example “oat drink.” Interestingly, although almond milk and coconut milk are on the list of exceptions they also tend to be marketed as “almond drink” and “coconut drink.”[30] More recently, however, we have seen some plant milk producers use the word “milk” in their product name or description, with their marketing campaign openly setting up their product as a competitor to dairy equivalents.

For plant cheeses there is a mixed picture. Some high-profile brands such as Violife, the Greek plant-based cheese manufacturer, avoid the word “cheese” as well as any words associated with dairy cheese, whereas others avoid “cheese” but do use words commonly used to describe different styles of cheese, and some smaller businesses do use “cheese”. A number of other plant-based products are on the UK market openly called “cream” and “yoghurt”. Without exception the plant-based nature of the product is specified alongside the restricted word, for example “coconut yoghurt,” but the decision in TofuTown made it clear that doing so does not effectively avoid the EU prohibition on use of the restricted words.

The decision in TofuTown has drawn attention to the regulation and the requirement on member states to enforce the restrictions. There may, therefore, be increased pressure put on plant-based businesses in the near future with respect to how they market their products. There are, however, a number of possible ways in which the rules may be changed or challenged.

Possible Solutions for Plant-Based Companies

UK Solutions

Permissible Approach

In the UK there is a permissible middle ground. The UK guidelines state that:

“Use of dairy terms to clearly and unambiguously describe a ‘non-dairy’ product as ‘non-dairy’ is acceptable. Example: Describing a soya product as a “non-dairy alternative to cheese.”[31]

While perhaps not attractive to plant-based businesses who have decided to openly challenge the restrictions, this does offer an alternative approach which could be a solution for some, enabling them to make the connection with the commonly understood term, so that the consumer knows what to expect, but without breaching the rules.

However, there is no express provision for this approach in the regulation itself, which reads as a complete prohibition on the use of the restricted words. On one interpretation the regulation could preclude the use of the restricted words in the description of plant-based products even if used to expressly advise the consumer that the product does not contain mammary secretions. Such a strict interpretation of the regulation does not seem in keeping with its purported aim of avoiding consumer confusion; however, as we have seen, the regulation is openly protectionist and part of an overall system designed to promote dairy, and an absolute prohibition on the use of the restricted words for plant-based products would be in line with that objective. Other member states interpret the regulation differently to the UK and unless and until we have a decision from the ECJ it will not be clear whether or not the UK approach is permissible.

Brexit

Brexit raises the possibility of the UK withdrawing completely from the single market and the CAP related regulations. In the absence of an agreement the UK’s withdrawal from the EU would mean just that, opening up the possibility that the UK dairy industry could lose its monopoly on words and plant-based businesses could be free to use these terms to describe their products in the UK. However, the UK is in negotiations with the EU and we do not yet know if it will leave the single market and, if it does, what replacement rules will be brought in. Indeed, it seems there is significant pressure on the UK government to continue the dairy promoting measures, whatever the outcome of the Brexit negotiations.[32]

List of Exceptions

It is possible that this matter could be resolved politically. The list of exceptions can be added to, and therefore one option would be for plant-based businesses and consumers to lobby governments and MEPs to add common plant-based products to the list. However, there was an attempt to do just this in the UK in the 1990s in relation to soya milk, which failed. Things have changed quite dramatically since then, in terms of the development of the plant-based food market and consumer awareness of plant-based products, however the attitude of the dairy industry has also changed rather dramatically; as more people switch to plant milks, cheeses and other products the dairy industry now does feel threated and does claim that there is a genuine risk of consumers inadvertently purchasing plant-based alternatives to dairy due to confusion, as opposed to a purposeful decision to avoid dairy products in order to avoid participating in animal exploitation and killing, or due to environmental or health concerns. It may therefore be unlikely that we will see the addition of plant-based products on the list of exceptions without a direct challenge to the regulation.[33]

Rights-Based Challenges

From the perspective of plant-based businesses, the rules may seem very unfair. If the only aim were to ensure that consumers knew what they were purchasing, all cheeses, milks and yoghurts could be named so as to indicate what they were composed of, with the full ingredients also listed on the label. Milk made from mammary secretions could be named as such: “cow’s milk,” “goat’s milk.” Cheese made from mammary secretions could be named likewise: “cow’s milk cheese”, “brie from cow’s milk” etc. Plant-based products could similarly refer to their composition in their name: “plant cheese”, “soya cheese,” “nut cheese” etc., with full ingredients listed on the label. From the perspective of plant-based businesses and consumers interested in plant-based products, this would be much fairer, while the risk of confusion between plant-based products and products made from mammary secretions would be very low and arguably less likely than under the current rules.

However, the real justification for the rules is to afford the dairy industry protection; as the plant-based industry grows the validity of that objective may also come under pressure. With the huge increase in the plant-based food market over recent years, the business interest in challenging the protectionist regulations is now significant and we may see such a challenge mounted if the situation is not resolved politically.

One possible basis for such a challenge could lie in the protections afforded to vegans. Veganism is living by the belief or conviction that it is wrong to exploit and kill living beings unnecessarily.[34] Vegan convictions have been recognised as “cogent, serious and important” and, therefore, protected beliefs which have the same status as religious beliefs in terms of human rights law. This is not because veganism is akin to a religion (it is not); it is because we have recognised the fundamental right of freedom of thought, conscience and belief, which covers personal convictions if they are cogent, serious and important.

People who hold protected beliefs are entitled to manifest those beliefs, by living in accordance with them, subject only to such restrictions as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.[35] Vegans manifest their belief by avoiding supporting or participating in animal exploitation for food, clothing, entertainment or any other purpose, in so far as is possible and practicable.

In addition to being cogent, serious, coherent and important, the conviction that it is wrong to exploit and kill animals unnecessarily has also been recognised as a protected philosophical belief, which is protected under the EU Equality Framework Directive (2000). Therefore, it is unlawful to discriminate against vegans, either directly because they are vegan, or indirectly, when an apparently neutral policy or practice causes them a disadvantage due to their vegan convictions. [36]

The principles of equality and non-discrimination are core EU principles and the rights to equality and freedom from discrimination are fundamental EU rights which have been significantly enhanced over recent years. The Lisbon Treaty brought the Charter of Fundamental Rights of the European Union (“the Charter”) into force on 1 December 2010, in terms of which all EU institutions must comply with fundamental EU rights and work towards eliminating discrimination.[37] EU legislation must comply with fundamental rights, as must domestic implementing legislation and, in terms of Article 52 of the Charter, EU legislation will be void if it does not respect the essence of those rights as well as the principle of proportionality.[38] The ECJ has applied Article 52 in three cases to annul sections of EU regulations on the basis that they failed to respect fundamental rights.[39] This opens up the possibility of a legal challenge to the regulation. The EU is also now legally required to accede to the ECHR, which will make it possible for individuals to take the EU before the ECtHR for breach of human rights.[40]

Consumers

For vegan consumers obscure product names can make product selection more difficult, and they may well find it easier if plant-based products were clearly labelled as plant-based versions of their dairy equivalents, such as “soya cheese” or “nut butter”. These familiar designations simply make it clear what the product is and what it is typically used for. A consumer may not get the same impression of a product called “Mediterranean block” as they would if it was designated as “coconut milk halloumi,” for example.

There is an argument to be made that the protectionist measures in place supportive of the dairy industry result in more obscure labelling and marketing of plant-based products, which has a negative impact on vegans, hindering their ability to live in accordance with their beliefs, and/or that it is discriminatory.

Plant-Based Businesses

The prohibition on the use of the restricted words prohibits plant-based businesses from using the most common terms, which most effectively let potential consumers know what to expect of a product and what uses it is suitable for. The rules force plant-based businesses to use more obscure terms in naming their products, and arguably it is much more difficult to reach new consumers when the products cannot be clearly labelled as a plant-based alternative to a familiar product.

There is an argument to be made that vegans operating a plant-based business are unlawfully discriminated against as a result of the restrictions on the use of certain words, as their ability to manifest their beliefs by running a business in accordance with those beliefs, and their right to property, are adversely affected either directly or indirectly by the restrictions.

An equality argument was made by TofuTown and rejected by the EJC; however, the argument did not relate to the rights of vegans, but rather to the distinction between the EU rules on animal-free meat alternatives as compared to dairy-free alternatives (words typically used for meat products can be used for plant-based products) which, it was argued, amounted to an unlawful difference in treatment. The ECJ rejected that argument.

USA

It is worth noting that the position in the United States is quite similar. There, Food and Drug Administration rules also restrict the use of the word “milk” to designate the mammary secretions of cows, although enforcement has not been consistent, leading the dairy industry to lobby for tighter controls through federal legislation.[41]

Conclusion

While the TofuTown decision did not “ban dairy-style names for tofu and soya”, but rather enforced a political decision to give dairy a monopoly on those words, it did confirm that plant-based companies cannot get around the restrictions by using a plant-based description alongside the restricted word. For plant-based businesses marketing products in the UK, the UK regulations offer a potential middle ground solution, by designating products as non-dairy alternatives to familiar dairy products. However, the lawfulness of this approach is untested at the EU level and other member states have interpreted the regulation more strictly.

The growth of the plant-based food market and of veganism raises the prospect of a direct challenge to the regulation as unlawfully discriminatory to vegans, either as consumers or business proprietors. The same lines of argument could be advanced by vegan run plant-based businesses in defence of enforcement proceedings against them for use of the restricted terms.

If the plant-based sector continues to grow at its current rate, some form of challenge seems almost inevitable.

Endnotes:

[1] Case C-422/16, Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH, 2017, not yet published; applying Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, OJ 2013 L 347/671.

[2] For example: BBC, “EU court bans dairy-style names for soya and tofu”, 14 June 2017, available on the Internet at http://www.bbc.co.uk/news/business-40274645 (last accessed on 15 September 2017).

[3] Treaty establishing the European Community (Consolidated version 2002), OJ 2002 C 325/33, at Article 32/33.

[4] The quotas have recently been lifted in recognition of changing circumstances, with global and local factors resulting in pressure on dairy farmers and leading to the EU looking at new measures to support them including large funding packages: see Emmet Livingstone, “Europe offers €500 million to help dairy farmers”, Politico, 15 July 2016, available on the Internet at http://www.politico.eu/article/europe-awaits-last-ditch-effort-to-save-its-milk-farms-commission-overproduction/ (last accessed 15 September 2017).

[5] Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organisation of the market in milk and milk products, OJ 1968 L 148/13.

[6] A protein found in mammalian mammary secretions.

[7] Vegans who have often wondered why milk powder, casein and whey appear as ingredients in the oddest of places may have found the answer. If a producer of crisps, for example, is offered dairy milk very cheaply, or perhaps even free, using that milk rather than a plant-based flavour binder is going to have a positive impact on their bottom line profit.

[8] The European support system for dairy is complex and incredibly detailed. A full review is beyond the scope of this article. For more detail on the background see, for example, Roland E. Williams, The Political Economy of the Common Market in Milk and Dairy Products in the European Union, (FAO Economic and Social Development Paper – 142, 1997).

[9] This theme continues in the 2007 version (1234/2007) of the Regulation supra note 5: “To contribute to balancing the milk market and to stabilise the market prices for milk and milk products, measures are needed to increase the possibility of disposing of milk products. The CMO (“Common Market Organisation”) for milk and milk products therefore provided for the grant of aids for the marketing of certain milk products with a view to specific uses and destinations. Moreover, that CMO provided that, in order to stimulate the consumption of milk by young people, the Community should defray a part of the expenditure occasioned by granting aid for the supply of milk to pupils in schools. These provisions should be maintained.”

[10] It continues: “Total EU milk production is estimated around 165 million tons per year (2014 data). The EU's main producers are Germany, France, the United Kingdom, Poland, the Netherlands and Italy which together account for almost 70% of the EU production.” European Commission, “Milk and milk products”, Last updated 15 September 2017, available on the Internet at https://ec.europa.eu/agriculture/milk_en. See also European Court of Auditors, “Have the management instruments applied to the market in milk and milk products achieved their main objectives?”, Special Report No 14/2009, 23 July 2009.

[11] Regulation (EEC) No 1411/71 of the Council of 29 June 1971 laying down additional rules on the common organisation of the market in milk and milk products for products falling within tariff heading No 04.01, OJ 1971 L 148/4.

[12] Council Regulation (EEC) No 1898/87 of 2 July 1987 on the protection of designations used in marketing of milk and milk products, OJ 1987 L 182/36, Article 2(2).

[13] Ibid., Article 2(1).

[14] Ibid., Article 1(2)(b).

[15] Ibid., Article 1(2)(a).

[16] Ibid., Article 2(4).

[17] Ibid., Article 3(2).

[18] Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), OJ 2007 L 299/1.

[19] Regulation 1308/2013 supra note 1.

[20] Regulation 1898/87 supra note 12, Article 3(1).

[21] Ibid., Article 4(1): “Member States shall send the Commission by 1 October 1987 an indicative list of the products which they regard as corresponding in their territory to the products referred to in the second subparagraph of Article 3(1). Member States shall, where necessary, make additions to this list subsequently. (2): In accordance with the procedure laid down in Article 30 of Regulation (EEC) No 804/68, the Commission shall: (a) adopt the detailed rules for the application of this Regulation; (b) draw up and, where necessary, supplement the list of the products referred to in the second subparagraph of Article 3(1) on the basis of the lists sent to it by the Member States; (c) make additions, where necessary, to the list of designations given in the Annex hereto (3) Each year before 1 October and for the first time before 1 October 1988, the Member States shall report to the Commission on developments in the market in milk products and competing products in the context of the implementation of this Regulation so that the Commission is in a position to report to the Council by 1 March of the ensuing year.”

[22] Other listed exceptions include: butter beans; fruit cheese (e.g. lemon cheese, damson cheese); cream filled biscuits (e.g. custard cream, bourbon cream, raspberry cream biscuits, strawberry cream, etc.); cream filled sweets or chocolates (e.g. peppermint cream, raspberry cream, crème egg); cream crackers; salad cream.

[23] Commission Decision of 28 October 1988 listing the products referred to in the second subparagraph of Article 3 (1) of Council Regulation (EEC) No 1898/87, OJ 1988 L 310/32, updated by Commission Decision of 20 December 2010 listing the products referred to in the second subparagraph of point III(1) of Annex XII to Council Regulation (EC) No 1234/2007, OJ 2010 L 336/55.

[24] On the history of soya milk and the marketing of soya milk in the UK see, for example, Arthur Ling and Harry Mather, “The Milk of Human Kindness”, Vegan Views vol. 37, Autumn 1986, available on the Internet at http://www.veganviews.org.uk/vv37/vv37arthurling.html (last accessed on 15 September 2017) and William Shurtleff and Akiko Aoyagi, History of Soymilk and Other Non-Dairy Milks (1226-2013), (Soyinfo Center 2013).

[25] Fifteenth annual report on monitoring the application of Community law (1997) (98/C 250/01) COM(1998) 317 final (Submitted by the Commission on 27 May 1998).

[26] Arthur Ling, “Soya Milk Saga”, Vegan Views vol. 69, Summer 1995, available on the Internet at http://www.veganviews.org.uk/vv69/vv69soyamilk.html (last accessed on 15 September 2017). The petition is reported to have been presented to the Commissioner on 11 July with a delegation of MEPs led by Mark Watts, Dr. Caroline Jackson (MEP for Wiltshire), David Hallam (Shropshire) and Robert Sturdy (Cambridgeshire).

[27] Ibid.

[28] The version now available from the Food Standards Agency is the “Guidance on Legislation on the Protection of Definitions and Designations in Respect of Milk and Milk Products”, June 2010, available on the Internet at https://www.food.gov.uk/sites/default/files/multimedia/pdfs/milkproductguide.pdf

[29] Ibid.: “Example of dairy alternatives / analogues

Dairy alternative products that might otherwise be considered by consumers to be butter, yogurt, milk and cheese (etc) must be described by a more specific but longer description, such as “sunflower seed spread X%” , “fermented soya dessert”, “oat drink” and “pizza topping / food slice” respectively.

Analogues are products, which may look similar to a dairy product, but they are manufactured wholly or in part from vegetable matter. Some analogues for Cheese contain casein (which is a dairy product).

13. Whilst the CMO Regulation aims to prevent the mis-description of ‘imitation dairy products’, for example, so-called ‘cheese analogues’/ dairy cream alternatives, it also prevents the name ‘dietary cheese’ from being used for non-dairy cheese i.e. cheese in which vegetable fat has replaced the milk or dairy fat for dietary purposes, even if accompanied by additional, clarifying descriptions.

Non-dairy produce

24. The Single CMO Regulation prohibits ‘non-dairy’ products (products whose dairy component has been replaced in whole, or in part, with non-dairy components) from using dairy terms such as "yogurt" and "milk".

25. In addition, the Regulation bans labels, commercial documents, publicity material or any form of advertising or presentation which claim, imply or suggest, that a non-dairy product is a milk product

Examples considered as prohibited marketing for non-dairy products

The use of comparisons or claims such as ‘real buttery taste’, ‘tastes like real cream’, or terms like ‘whipping’, ‘double’ etc. normally associated with dairy products, should be considered alongside the provision, in the context of a particular label or advert etc., as they may be in breach of the Regulations.

The terms ‘soya / rice / oat milk’ are also not permitted under the CMO legislation.”

[30] In the case of coconut milk it may be in recognition of the fact that the reference to “coconut milk” in the exceptions in the 1980s may have been a reference to cans of coconut milk used for cooking rather than coconut drinking milk.

[31] Food Standards Agency, “Guidance on Legislation on the Protection of Definitions and Designations in Respect of Milk and Milk Products” supra note 28 at p.27.

[32] See, for example, Ashley Cowburn, “Brexit: Theresa May warned to avoid ‘milk snatcher’ label over EU milk subsidies scheme for UK school children”, Independent, 4 August 2017, available on the Internet at http://www.independent.co.uk/news/uk/politics/theresa-may-milk-snatcher-eu-milk-subsidies-scheme-uk-school-children-a7876206.html (last accessed on 15 September 2017).

[33] Ibid., at p.18/19:

“29. The CMO Regulation requires Member States to submit to the European Commission additions to the indicative national list of products that they deem to meet the derogation requirements and to update and inform the Commission as necessary. This list represents products that are clearly ‘non-dairy’ but have traditionally used ‘dairy’ terms (such as peanut butter) and/or products where the dairy term is clearly used to describe a characteristic quality of the food product (such as creamed potatoes). The Regulation does not provide the Commission with any specific powers to review or approve these national lists.

30. New products may be added to the list if they are deemed to meet the derogation requirements. The list is not definitive and is intended to be an indicative guide to products considered compliant.

31. The Agency has developed, and will maintain a method of assessment (an assessment protocol) for updating the UK national indicative list of products, which qualify for the derogation on dairy terms (See Annex 1 for protocol and Annex 2 for UK national indicative list of products). The protocol includes the criteria to be applied during product assessments and the mechanism for carrying them out.”

The Commission also has the ability to make amendments and add to the exceptions in light of evolving consumer demand etc. Article 78(3) of Regulation No 1308/2013.

[34] See Vegan Society, “Definition of veganism”, available on the Internet at https://www.vegansociety.com/go-vegan/definition-veganism (last accessed on 15 September 2017).

,ailed to respectsis that they bmary secretions. rs it d fundamental rights. cluding freedom from discrimination

[35] These rights flow primarily from Article 18 of the International Convention on Civil and Political Rights (“ICCPR”), Article 9 of the European Convention on Human Rights (“ECHR”) and the Article 10 of the Charter of Fundamental Rights of the European Union.

[36] For more information on the rights of vegans in the UK see, for example, Jeanette K. Rowley, Vegan Rights: Questions and Answers, (International Vegan Rights Alliance 2014), available on the Internet at http://www.theivra.com/Documents/Vegan%20Rights.pdf (last accessed on 15 September 2017); and Barbara Bolton, “In the courts: vegan rights in the UK”, 18 July 2017, available on the Internet at https://l2b.thelawyer.com/vegan-rights-uk/ (last accessed on 15 September 2017).

[37] See, for example, Francesca Ferraro and Jesús Carmona, Fundamental Rights in the European Union: The Role of the Charter After the Lisbon Treaty (Luxembourg: Publications Office 2015) with the Charter of Fundamental Rights of the European Union, OJ 2012 C 326/391.

[38] Charter of Fundamental Rights of the European Union, OJ 2012 C 326/391, Article 52(1): Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

[39] Joined cases C-92/09 and C-93/09, Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063; C-236/09, Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministers [2011] ECR I-00773; and joined cases C-293/12 and C-594/12 Digital Rights Ireland and Others v Minister for Communications, Marine and Natural Resources and Others [2014] ECLI/EU/C/2014/238.

[40] See, for example, Agnes Smedberg, “The legally binding Charter and the EU’s accession to the ECHR: Consequences of Art 6 TEU for the autonomy of EU law and fundamental rights protection within Europe”, (LL.M. thesis on file at Lund University, 2013), available on the Internet at http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=4276286&fileOId=4284264 (last accessed on 15 September 2017).

[41] See Patrick Sison, “Soy ‘milk’? Even federal agencies can’t agree on terminology”, Telegraph Herald, 3 July 2017, available on the Internet at http://www.telegraphherald.com/news/national_world/article_ddbe3db1-2f7c-55c7-bb70-a7232348d0c6.html (last accessed on 15 September 2017); and Mary Ellen Shoup, “Vox Pop: Should the term ‘milk’ be regulated?”, Dairy Reporter, 24 February 2017, available on the Internet at http://www.dairyreporter.com/Regulation-Safety/Vox-Pop-Should-the-term-milk-be-regulated (last accessed on 15 September 2017). Interestingly, the same issue arose in Brazil and plant-based producers were banned from using “queso” but have manoeuvred around this by using “provolone / cheddar etc” on the basis that these words indicate flavours and textures rather than indicating any connection with dairy, and by creating the trademark “vegan cheese” and marketing their products with an English name: see Elaine Watson, “Spotlight on Brazil – Plant-based foods, beverages: ‘We’re sensing a tremendous business opportunity,’ says GFI”, Food Navigator USA, 1 June 2017, available on the Internet at http://www.foodnavigator-usa.com/Markets/Good-Food-Institute-talks-plant-based-foods-beverages-in-Brazil (last accessed on 15 September 2017).

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